Malaer v. Damron , 1889 Ill. App. LEXIS 53 ( 1889 )

Green, J.

All the defendants who were personally served with process are barred by the statute from suing out a writ of error after the lapse of five years from the date of entering the decree. Plaintiffs in error brought into court by constructive service occupy a different position; the decree as to them is, for three years after its rendition, simply provisional and subject to be opened by petition; as to them a writ of error to bring up these proceedings is not barred until after the expiration of eight years from the date of entering final decree. Southern Bank, St Louis, v. Humphreys, 47 Ill. 227; Sale v. Pike, 54 Ill. 292. The main controversy in this case is concerning the sufficiency of the affidavit of non-residence, to authorize publication of notice to these non-resident defendants, and the sufficiency of the clerk’s certificate of mailing notice. The affidavit was defective and insufficient as to Hudgins; it is merely stated therein “his place of residence is unknown, ” and omits the further necessary averment, “that upon diligent inquiry his place of residence can not be ascertained.” Hartung v. Hartung, 8 Ill. App. 156. As to Malaer and Springs, the affidavit is said to be defective because their place of residence is given on information and belief.\ and because “place of residence ” means “post office addressf and this court will take judicial notice of the contents of a postal guide, and thereby see and determine that at time of mailing copy of notice to these defendants, there was no such post office as Segual, Texas, and hence mailing such copy to them there wuis of no effect as a notice. We do not regard the affidavit as defective.

If the complainant sought and obtained such information as enabled him to state upon oath he believed the p'ace of residence of defendants to be the place named in the affidavit, that was sufficient: Hannas v. Hannas, 110 Ill. 53; and conceding the postal guide published by authority of the government to be competent evidence for the purpose of proving the fact that a post office is, or is not, established at a certain place'—and that, we think, is the utmost that can be legally insisted on—it does not follow that courts will judicially notice such fact, and unless the guide be introduced to prove it, it will not be presumed to exist, and we do not find authority supporting this contention of plaintiff in error in the authorities cited. In addition to the facts certified to of mailing copy of notice to the place named in the affidavit as the residence of these defendants, the decree recites that the clerk had mailed such copy to Constantine Malaer and Mali ala Springs at their flace of residence, and finds the court had jurisdiction of the parties. We think they were properly in court and the statute was complied with in respect of all the steps required to be taken in order to charge these defendants with notice of the pendency of the suit, and bring them within the jurisdiction of the court. Hannas v. Hannas, supra. If this conclusion is correct, Malaer and Springs being properly in court, and having made default, the decree pro confesso as to them was properly entered, and the other objections urged to the decree and sale thereunder are not tenable. One is that the court erred in rendering the decree for the amount due on Farrar’s note against any of the defendants save the maker, and ordering that they (all the defendants) pay the same in thirty days. This is not a decree against these defendants personally for a debt, but an order subjecting the land to sale, if that sum is not paid within thirty days, if the defendants or either of them had any interest in the land, to the extent of that interest, and no further did the decree affect them. Gochenour v. Mowry, 33 Ill. 331; Glover et al. v. Benjamin, 73 Ill. 43. The other objection necessary to be noticed is, that the master sold the premises “ en masse” In Bozarth v. Largent, ad. sheets No. 1 of 128 Ill. 106, the same objection was made and it is there said: “ If this be conceded it would not render the sale void; at most it would only be grounds for setting the sale aside on proper application to the court in apt time; it, however, appears that the land was offered by the master in separate parcels and receiving no bids therefor, it was then offered and sold ‘en masse” we are not prepared to say the action of the master was not warranted.”

In this case the master states that said lands having been first offered for sale in separate tracts, and there being no bid therefor in that manner, the whole of said lands was offered uen masse” and sold ; on the authority of the above case the objection ought not to be sustained. Inasmuch as Malaer and Springs can not maintain this writ of error, it must be dismissed, being a joint writ, notwithstanding Hudgins, the co-plaintiff in error, might on his part maintain a several writ. Moore v. Capps, 4 Grilm. 315. If he had, and still has, any interest in the mortgaged premises, he has ample time within the period of limitation to sue out a writ of error on his own behalf, and if successful could have the decree complained of reversed as to himself, and be let in to establish his rights or interests, if any, in the land, upon a new hearing of the cause. The rule is laid down by our Supreme Court that in this class of cases a reversal in part is proper. Where two heirs sued out a writ of error to reverso a decree for specific performance, the court say each became seized on the death of the ancestor of an undivided estate, which he could dispose of without the assent of the other tenants in common. Under the decree he could relieve himself from all responsibility by a conveyance of his interest to complainant; thus, as respects himself, fully satisfy the decree and at the same time leave it in full force as to his co-defendants. The decree, though in form joint against the heirs, is in fact but a several decree against each; it operates only on the separate estate of each; the decree should only be reversed as to the plaintiffs in error. Enos v. Capps, 12 Ill. 255 ; Moore v. Capps, supra. We apprehend the only interest Hudgins could have which the decree affects would be in the land mortgaged, hence would be within the operation of the rule above stated. The writ' of error is dismissed without prejudice as to Hudgins.